In "A Child is Missing" we report all Federal Hague Convention Child Abduction Cases. We also provide information to help legal practitioners understand the basic issues, discover what questions to ask and learn where to look for more information when there is a child abduction that crosses country boarders.

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Sunday, September 9, 2012

In Tlustochowicz v. Tlustochowicz, 2012 WL 3779071 (N.D.Ill.) on
September 22, 2011, Respondent Emilia Tlustochowicz left Illinois for Poland,
taking along her child without the consent of Petitioner Marcin Tlustochowicz, who was Emilia's husband and the child's father. Marcin brought a petition in the Regional Court for Szczecin Prawobrzeze and Zachod, in the Republic of Poland, seeking return of the child to the United States pursuant to the Hague Convention. Article 15 of the Convention permits a court of a nation that is party to the Convention to "request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention." Convention Art. 15; see Sorenson v. Sorenson, 563 F.Supp.2d 961 (D.Minn.2008), aff'd, 559 F.3d 871 (8th Cir.2009). On April 12, 2012, the Polish court issued an Article 15 order requesting Marcin "to submit [to] the authorities of the state of the habitual residence of the child a decision or other determination that the removal of a minor child [first name] Tlustochowicz was wrongful within the meaning of Article 3 of the Convention." On July 11, 2012, Marcin filed an Article 15 petition with the court.
The Court reiterated that Article 15 was strictly limited to determining whether the removal was wrongful under Article 3. Any further proceedings that may be necessary under the Convention, including any affirmative defenses Emilia could wish to assert, were beyond the scope of the Polish court's referral to this court and are reserved for the Polish court to consider as it deems fit. (Citing Khan v. Fatima, 680 F.3d 781, 784 (7th Cir.2012); Altamiranda Vale v. Avila, 538 F.3d 581, 587 (7th Cir.2008); Fabri v. Pritikin-Fabri, 221 F.Supp.2d 859, 863-64 (N.D.Ill.2001).
Marcin was born in Poland in 1972 and moved to the United States in 1992.
Although he initially came to the United States to study, he decided soon thereafter to
remain permanently. He was a dual citizen of the United States and Poland. Emilia was born in Poland in 1979. She was a Polish citizen and a permanent resident
of the United States. Marcin and Emilia met in Poland in November 2008 when Marcin was there visiting members of his family. Marcin and Emilia were married in a religious ceremony in Poland in November 2009, followed by a civil ceremony in Illinois in December 2009. The purpose of the civil ceremony was to facilitate Emilia's becoming a permanent resident of the United States. In December 2009, Marcin and Emilia settled together at the house Marcin owned in Plainfield, Illinois. Emilia brought with her from Poland to Illinois several heavy suitcases containing many of her possessions and personal effects, including the majority of her photographs and of the wedding gifts the couple received. Both Marcin and Emilia agreed and intended to live together in Illinois. After going through the application process with Marcin's assistance, Emilia became a permanent resident of the United States in May 2010. On December 30, 2010, the child was born to Marcin and Emilia in Naperville, Illinois. The child was a citizen of both the United States and Poland. Marcin assisted with the care of the child, would feed and play with the child, and would purchase items for the child. From mid-July to September 7, 2011, Emilia and the child took a vacation to Poland to visit Emilia's family, while Marcin remained in the United States. Marcin paid for the trip by purchasing a round-trip ticket for Emilia. Both Marcin and Emilia viewed the trip to Poland as a temporary vacation; neither intended that Emilia or the child would remain in Poland permanently or indefinitely. Emilia and the child returned to Illinois on September 7, 2011. Around that time, Marcin and Emilia discussed buying a new house closer to Marcin's workplace to reduce his commute to work, which at that point exceeded two hours daily. Emilia preferred not to move because she had recently become accustomed to the Plainfield neighborhood in which they then lived and did not want to have to become accustomed to a new neighborhood. Also around that time, Marcin and Emilia discussed buying a new car for Emilia, and Marcin bought Emilia a new car, a station wagon, which Emilia drove.
On September 9, 2011, Emilia sent an email to Marcin. Although the email
addressed an apparent disagreement between the couple regarding how the child
would be fed, the email was very affectionate and provided no indication that Emilia had
any intention to return to Poland permanently or indefinitely either alone or with the
child. On or around September 13, 2011, Emilia contacted her parents, who lived in
Poland, and asked them to buy her a plane ticket to return to Poland. Emilia's motivation in leaving Illinois was strife she was experiencing in her marital
relationship with Marcin. Emilia did not inform Marcin of her desire and intent to return to Poland permanently or indefinitely at any time prior to her departure on September 22, 2011. Using a ticket purchased by her parents, Emilia left for Poland on September 22, 2011, taking the child with her. Marcin never consented to Emilia's taking the child back to Poland. Had Marcin been aware of Emilia's plan to take the child to Poland, he would not have consented. When Marcin returned from work on September 22, he discovered a letter from Emilia informing him that she had decided to leave. The following morning he received a text message from Emilia informing him that she had arrived in Poland with the child. These were the first indications that Marcin received that Emilia no longer intended to live with him and raise their child in Illinois.
Marcin soon consulted the U.S. State Department website for advice on regaining
custody of the child. Marcin reported the child missing to local authorities on September 23, 2011. Marcin had multiple contacts with Emilia in the months after she arrived in Poland by phone and over the internet. Marcin visited Emilia and the child in Poland and attempted to persuade Emilia to return. Marcin filed a petition with the Polish courts to have the child returned to Illinois pursuant to the Convention. That petition precipitated the reference by the Polish court of the Article 3 determination to the United States courts. Emilia and the child remained in Poland as of August 31, 2012.
The District court found that Emilia removed the child from Illinois to Poland on September 22, 2011 and that Illinois was the child's habitual residence immediately prior to the removal. It observed that the determination of 'habitual residence' is to be made on the basis of the everyday meaning of these words rather than the legal meaning that a particular jurisdiction attaches to them. Kijowska v. Haines, 463 F.3d 583, 586 (7th Cir.2006). The Seventh Circuit approved the standard set forth in Mozes v. Mozes, 239 F.3d 1067 (9th Cir.2001). Koch v. Koch, 450 F.3d 703, 715 (7th Cir.2006) In the case of young children, the Mozes court found it most prudent to focus on the intent of the parents rather than the intent of the child in determining the child's habitual residence. The standard requires courts to determine whether the parents intended to abandon their previous habitual residence, judging that intent at the last time the parents had a shared intent. The establishment of a habitual residence requires an actual change in geography, as well as the passage of an appreciable amount of time."
The facts showed that when Marcin and Emilia married and moved to
Illinois, they intended to live together in Illinois on a permanent or long-term basis.
Emilia brought several suitcases worth of possessions and personal effects to the
United States and moved into Marcin's house; she and Marcin also began the
application process that culminated in her receiving United States permanent resident
status. Their intent had not changed as of December 2010, when they had been in the
United States for a year and Emilia gave birth to the child. And Emilia and the child's
vacation to Poland in the summer of 2011 only confirmed that Marcin and Emilia still both intended to stay in the United States and raise the child there: Marcin bought Emilia a round-trip ticket and stayed behind, and when the length of the trip was extended, the extension was short (about a week) rather than lengthy or indeterminate. When Emilia returned on September 7, she and Marcin discussed buying and moving to a new house, also in Illinois, and actually bought a new car for Emilia-further indications that they shared an intent to remain permanently with the child in the United States. And Emilia's September 9 email to Marcin was affectionate and offered no suggestion of any intent or desire to return with the child to Poland permanently or indefinitely. Emilia's intent changed around September 13, when troubles in her marital relationship led her to ask her parents to help fly her back to Poland. At that point, the parents' intent regarding the child's habitual residence was no longer shared, for Marcin still intended and expected that the family would remain in Illinois. Thus, the parents' last shared intent was that the child's habitual residence be the United States. Emilia of course could not change the child's habitual residence by unilaterally removing him to Poland; as the Seventh Circuit has held, a parent cannot create a new 'habitual
residence' by the wrongful removal and sequestering of a child.
The court held that Marcin had rights of custody over the child under Illinois law at the time of the removal. At the time of removal, there had been no court or administrative order concerning custody of the child. The Illinois Probate Act provided at the time of the child's birth, as follows: Parental rights to custody. If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education.... The parents have equal powers, rights and duties concerning the minor. 755 ILCS 5/11-7 (2010). When the child was born Marcin indisputably had legal custody of the child, together with Emilia. Emilia noted that this provision was repealed effective January 1, 2011, months before the child's removal to Poland, see Illinois Pub. Act 96-1338, s 10, and argued that its repeal meant that Marcin had lost legal custody of the child as of the date the child was removed to Poland. The argument was wholly without merit. The court held that Illinois law gave Marcin and Emilia custody rights over the child as of the time of removal.
The court held that Emilia's removal of the child from Illinois to Poland was in breach of Marcin's custody rights. Emilia took the child to Poland without obtaining consent from or even notifying Marcin, and her intent in doing so was to deprive Marcin of the ability to exercise his right of custody. It held that Marcin exercised and sought to exercise his rights of custody as of the time of removal. Prior to and after the child's birth, Marcin took part in his upbringing by reading books on child -rearing, attending parenting classes with Emilia, and taking time off from work to help care for the newborn. Prior to the removal, Marcin cared for the child by acting as his father. Immediately following the removal, Marcin filed a missing person report and initiating a police investigation, and he continued seeking to regain custody by visiting Emilia, attempting to persuade her to return, and filing his Hague Convention petition. Given these facts, Marcin was exercising his custody rights at the time of removal and thereafter attempted to restore his custody over the child.
Given these circumstances, Emilia's removal of the child to Poland was "wrongful" within the meaning of Article 3 of the Convention. See Kijowska, 463 F.3d at 588; Feder v. Evans-Feder, 63 F.3d 217, 222-26 (3d Cir.1995).

In Demaj v. Sakaj, 2012 WL 3822015 (D.Conn.) respondent moved to exclude any testimony or other evidence relating to "parental alienation syndrome," in that "[d]isclosures by ...Petitioner as to the testimony expected from Dr. Benjamin Garber indicate that he will testify about the concept of parental alienation syndrome." The District Court observed that under ICARA and the Hague Convention, there was not one published decision that relied to any degree on the "parental alienation syndrome." It concluded that "parental alienation" was not, and will not be, permitted. The Court pointed out that in Karkkainen v. Kovalchuk, 445 F.2d 280, 288 (3d Cir.2006), the petitioner-mother argued on appeal that the district court had abused its discretion by appointing an expert to evaluate the daughter's "level of maturity [who] lacked sufficient experience in 'parental alienation syndrome.' " The petitioner-mother contended that her daughter's desires to remain permanently in the United States were the result of the respondent-father and his second wife having alienated the child from the petitioner, including referring to her as the child's aunt. The issue of parental alienation was irrelevant because the district court held that the United States was the child's habitual residence. Similarly, in Haimdas v. Haimdas, 720 F.Supp. 183, 207, n. 17 (E.D.N.Y.), aff'd on other grounds, 401 Fed. Appx. 567 (2d Cir.2010), the district court categorically rejected the report and testimony of the petitioner-mother's expert regarding the children's maturity level and any other matter in controversy giving the report and testimony no weight. The district judge described the expert's opinions regarding the potentially distorting effects of the protracted custody battle, parental alienation and ping-pong lifestyle that A.H. and S.H. have experienced, as well as their notable verbal abilities and overall intelligence, essentially confirmed the obvious. The district court observed, Frankly, short of opining as to a mental or emotional pathology, it is hard to fathom what a child psychologist in a Hague Convention case could opine that is not already within the ken of an ordinary finder of fact. In Garcia v. Angarita, 440 F.Supp.2d 1364,1368 (S.D . Fla.2006), like here, the court had ordered a psychological evaluation of the child, which report the petitioner-father introduced into evidence. In this report, the expert opined, in rejecting the respondent-mother's defense of grave risk, that any psychological harm to their son would be reduced by the close relationship the children with his paternal relatives, and the "support system" that the petitioner-father had in Colombia. The Court
observed that: "Significantly, Respondent is in a position to greatly reduce this risk, if she so chooses, by discontinuing the activities which [the expert] believes have resulted in a degree of parental alienation toward Petitioner, and if Respondent returns with the children to Colombia." The issue of parental alienation was hardly the central focus of that trial.

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This blog is published by Joel R. Brandes Consulting Services, Inc.
Joel R. Brandes is the author of the "Law and the Family New York 2d", and "Law and the Family New York Forms" (Thomson-West). He is not a lawyer.
Joel R. Brandes Consulting Services, Inc. is not a law firm, or a lawyer and does not give legal advice.
Notice: The information on this site pertains to New York and Federal law only and is offered as a public service. It is not intended to give legal advice about a specific legal problem, nor does it create an attorney-client relationship. Due to the importance of the individual facts of every case, the generalizations we make may not necessarily be applicable to any particular case. Changes in the law could at any time make parts of this web site obsolete. This information is provided with the understanding that if legal advice is required the services of a competent attorney should be sought.

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What this Blog is About

This blog is dedicated to all of those parents, relatives and friends of persons whose children are missing and have been abducted by a parent, to another country. The Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Convention, established procedures to enable parents to obtain the prompt return, to their country of habitual residence, of children who have been unlawfully removed or retained in another country. In this blog we will focus on providing information with regard to what to do where there is a child abduction that crosses country boarders.

This Blog is written by Joel R. Brandes, the author of Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms (Thomson-West), Bari Brandes Corbin, of the New York Bar, and co-author of Law and the Family New York, Second Edition, Revised, Volumes 5 & 6 (Thomson-West), and Evan B. Brandes, of the New York and Massachusetts Bars, and a Solicitor in New South Wales, Australia. The authors write the annual supplements to Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms